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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of
the
Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported):
September 13, 2022
NanoVibronix, Inc.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of incorporation)
001-36445 |
|
01-0801232 |
(Commission
File
Number)
|
|
(IRS
Employer
Identification
No.)
|
525 Executive Blvd.,
Elmsford,
NY 10523
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code:
(914)233-3004
Not Applicable
(Former
name or former address, if changed since last
report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12) |
|
|
☐ |
Pre-commencement
communication pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communication pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Indicate
by check mark whether the registrant is an emerging growth company
as defined in Rule 405 of the Securities Act of 1933 (17 CFR
§230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17
CFR §240.12b-2).
Emerging
growth company
☐
If an
emerging growth company, indicate by check mark if the registrant
has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided
pursuant to Section 13(a) of the Exchange Act. ☐
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock, par value $0.001 per share |
|
NAOV |
|
Nasdaq
Capital
Market |
Item
3.03. Material Modification to Rights of Security
Holders.
The
disclosure set forth in Item 5.03 below is hereby incorporated
herein by reference.
Item
5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
Series F Preferred Stock
On
September 13, 2022, the board of directors (the
“Board”) of NanoVibronix, Inc. (the
“Company”) declared a dividend of one one-thousandth
of a share of Series F Preferred Stock, par value $0.001 per share
(“Series F Preferred Stock”), for each outstanding
share of the Company’s common stock, par value $0.001 per share
(“Common Stock”) to stockholders of record at 5:00
p.m. Eastern Time on October 14, 2022 (the “Record
Date”).
General; Transferability. Shares of Series F Preferred
Stock will be uncertificated and represented in book-entry form. No
shares of Series F Preferred Stock may be transferred by the holder
thereof except in connection with a transfer by such holder of any
shares of Common Stock held by such holder, in which case a number
of one one-thousandths (1/1,000ths) of a share of Series F
Preferred Stock equal to the number of shares of Common Stock to be
transferred by such holder will be automatically transferred to the
transferee of such shares of Common Stock.
Voting Rights. Each share of Series F Preferred
Stock will entitle the holder thereof to 1,000,000 votes per share
(and, for the avoidance of doubt, each fraction of a share of
Series F Preferred Stock will have a ratable number of votes).
Thus, each one-thousandth of a share of Series F Preferred Stock
would entitle the holder thereof to 1,000 votes. The outstanding
shares of Series F Preferred Stock will vote together with the
outstanding shares of Common Stock of the Company as a single class
exclusively with respect to (1) any proposal to adopt an amendment
to the Company’s Amended and Restated Certificate of Incorporation,
as amended (the “Certificate of Incorporation”), to
reclassify the outstanding shares of Common Stock into a smaller
number of shares of Common Stock at a ratio specified in or
determined in accordance with the terms of such amendment (the
“Reverse Stock Split”) and (2) any proposal to
adjourn any meeting of stockholders called for the purpose of
voting on Reverse Stock Split (the “Adjournment
Proposal”). The Series F Preferred Stock will not be
entitled to vote on any other matter, except to the extent required
under the Delaware General Corporation Law.
Unless
otherwise provided on any applicable proxy or ballot with respect
to the voting on the Reverse Stock Split or the Adjournment
Proposal, the vote of each share of Series F Preferred Stock (or
fraction thereof) entitled to vote on the Reverse Stock Split, the
Adjournment Proposal or any other matter brought before any meeting
of stockholders held to vote on the Reverse Stock Split and the
Adjournment Proposal will be cast in the same manner as the vote,
if any, of the share of Common Stock (or fraction thereof) in
respect of which such share of Series F Preferred Stock (or
fraction thereof) was issued as a dividend is cast on the Reverse
Stock Split, the Adjournment Proposal or such other matter, as
applicable, and the proxy or ballot with respect to shares of
Common Stock held by any holder on whose behalf such proxy or
ballot is submitted will be deemed to include all shares of Series
F Preferred Stock (or fraction thereof) held by such holder.
Holders of Series F Preferred Stock will not receive a separate
ballot or proxy to cast votes with respect to the Series F
Preferred Stock on the Reverse Stock Split, the Adjournment
Proposal or any other matter brought before any meeting of
stockholders held to vote on the Reverse Stock Split.
Dividend Rights. The holders of Series F Preferred Stock,
as such, will not be entitled to receive dividends of any
kind.
Liquidation Preference. The Series F Preferred Stock will
rank senior to the Common Stock as to any distribution of assets
upon a liquidation, dissolution or winding up of the Company,
whether voluntarily or involuntarily (a
“Dissolution”). Upon any Dissolution, each holder of
outstanding shares of Series F Preferred Stock will be entitled to
be paid out of the assets of the Company available for distribution
to stockholders, prior and in preference to any distribution to the
holders of Common Stock, an amount in cash equal to $0.001 per
outstanding share of Series F Preferred Stock.
Redemption. All shares of Series F Preferred Stock that are
not present in person or by proxy at any meeting of stockholders
held to vote on the Reverse Stock Split and the Adjournment
Proposal as of immediately prior to the opening of the polls at
such meeting (the “Initial Redemption Time”) will
automatically be redeemed in whole, but not in part, by the Company
at the Initial Redemption Time without further action on the part
of the Company or the holder of shares of Series F Preferred Stock
(the “Initial Redemption”). Any outstanding shares of
Series F Preferred Stock that have not been redeemed pursuant to an
Initial Redemption will be redeemed in whole, but not in part, (i)
if such redemption is ordered by the Board in its sole discretion,
automatically and effective on such time and date specified by the
Board in its sole discretion or (ii) automatically upon the
approval by the Company’s stockholders of the Reverse Stock Split
at any meeting of the stockholders held for the purpose of voting
on such proposal.
Each
share of Series F Preferred Stock redeemed in any redemption
described above will be redeemed in consideration for the right to
receive an amount equal to $0.10 in cash for each one hundred whole
shares of Series F Preferred Stock that are “beneficially owned” by
the “beneficial owner” (as such terms are defined in the
certificate of designation with respect to the Series F Preferred
Stock (the “Certificate of Designation”)) thereof as
of the applicable redemption time and redeemed pursuant to such
redemption, payable upon receipt by the Company of a written
request submitted by the applicable holder to the corporate
secretary of the Company (each a “Redemption Payment
Request”) following the applicable redemption time. Such
Redemption Payment Request shall (i) be in a form reasonably
acceptable to the Company (ii) set forth in reasonable detail the
number of shares of Series F Preferred Stock beneficially owned by
the holder at the applicable redemption time and include evidence
reasonably satisfactory to the Company regarding the same, and
(iii) set forth a calculation specifying the amount in cash owed to
such Holder by the Company with respect to the shares of Series F
Preferred Stock that were redeemed at the applicable redemption
time. However, the redemption consideration in respect of the
shares of Series F Preferred Stock (or fractions thereof) redeemed
in any redemption described above: (i) will entitle the former
beneficial owners of less than one hundred whole shares of Series F
Preferred Stock redeemed in any redemption to no cash payment in
respect thereof and (y) will, in the case of a former beneficial
owner of a number of shares of Series F Preferred Stock (or
fractions thereof) redeemed pursuant to any redemption that is not
equal to a whole number that is a multiple of one hundred, entitle
such beneficial owner to the same cash payment, if any, in respect
of such redemption as would have been payable in such redemption to
such beneficial owner if the number of shares (or fractions
thereof) beneficially owned by such beneficial owner and redeemed
pursuant to such redemption were rounded down to the nearest whole
number that is a multiple of one hundred (such, that for example,
the former beneficial owner of 150 shares of Series F Preferred
Stock redeemed pursuant to any redemption will be entitled to
receive the same cash payment in respect of such redemption as
would have been payable to the former beneficial owner of 100
shares of Series F Preferred Stock redeemed pursuant to such
redemption).
The
Series F Preferred Stock is not convertible into, or exchangeable
for, shares of any other class or series of stock or other
securities of the Company. The Series F Preferred Stock has no
stated maturity and is not subject to any sinking fund. The Series
F Preferred Stock is not subject to any restriction on the
redemption or repurchase of shares by the Company while there is
any arrearage in the payment of dividends or sinking fund
installments.
The
Certificate of Designation was filed with the Delaware Secretary of
State and became effective on September 14, 2022. The foregoing
description of the Series F Preferred Stock does not purport to be
complete and is qualified in its entirety by reference to the
Certificate of Designation, which is filed as Exhibit 3.1 to this
Current Report and is incorporated herein by reference.
Item
7.01. Regulation FD Disclosure.
On
September 14, 2022, the Company issued a press release announcing
the Series F Preferred Stock dividend. A copy of that press release
is furnished as Exhibit 99.1 to this Current Report and
incorporated herein by reference.
In
accordance with General Instruction B.2 of Form 8-K, the
information in Exhibit 99.1, which is incorporated into this Item
7.01, is being furnished pursuant to Item 7.01 and shall not be
deemed “filed” for the purposes of Section 18 of the Exchange Act,
or otherwise subject to the liabilities of that section, nor shall
it be deemed incorporated by reference in any filing under the
Securities Exchange Act of 1934, as amended, or the Securities Act
of 1933, as amended, except as shall be expressly set forth by
reference in such a filing.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date:
September 14, 2022 |
NANOVIBRONIX, Inc. |
|
|
|
|
By: |
/s/
Stephen Brown |
|
Name: |
Stephen
Brown |
|
Title: |
Chief
Financial Officer |
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